Mulva? As I recall, that was one of his many guesses throughout the show.
The Hill's did not grant a blanket easement. They may have had a very good reason for wanting it where it was granted. Although the legal status of the current location may have ripened, the easemnt doesn't move just because the line was constructed in the wrong place.
That being said, if the document is ambigous, or there are unresolvable mistakes the location of the water line is probably the best evidence of the intention.
How does the water line line up with easments on the adjoining property?
The second paragraph of the description states it is 33' right and left of "a centerline, and", then the metes, but it also refers to a map in the third. Do you have the map? That may help show intent. Around here the easement typically from the centerline of the utility, more or less.
I understand Paden's frustration with the old easement description no matter where the water line was actually constructed. It was almost definitely prepared by someone who had no business writing descriptions and who had never been anywhere close to the site. I had an employer once upon a time who believed in delivering product ontime even if it was known to be a faulty product. Never be late was the motto. Getting repaid to correct mistakes is great on the bottom line. That was the only kind of client he would take on. Any guesses as to which major North American government might have been his number one client?
Norman Oklahoma, post: 347129, member: 9981 wrote: 1. Don and Dolores granted an easement for a water line over a very specific part of their land, not just any old place at random (as was often the case for oil pipelines).
2. The pipeline was built outside the easement, and apparently Don and Deloris didn't object in a timely manner. So they, their heirs and assigns, are estopped from having the misplaced waterline moved. Note: If Don and Doloris were absentee owners and could convince you, and a judge , that they never did and couldn't have known where the pipe line was relative to the easement they might have defeated the estoppel prior to 1978, but:
3. The statutory 15 years having passed in 1978 the waterline owner has a possessory right to a prescriptive easement for it's existing water line. For a width, I'd use the width quoted in the deed description.
4. Don and Doloris, their heirs and assigns, might successfully argue that the written easement is extinguished by abandonment, it's purpose having been terminated. But I'd probably leave that for lawyers to argue. Depends partly on how certain I was that the waterline in the ground is the same one that was contemplated in 1963.So their is a prescriptive easement along the route of the pipeline, and (maybe) an expressed easement where the deed calls it.
That's my opinion.
Would you go so far as to say that the prescriptive easement extinguishes the expressed easement?
paden cash, post: 347079, member: 20 wrote: I'm sure the easement came first. I'm sure they meant for the waterline to fit the easement, but the easement description is flaky at its best, the ties don't check worth a hoot. When these were written in 1961 most of the distances add up to 2640'. The simple fact is the legal doesn't really close on any of the quarter lines by a few feet and trying to determine the point of beginning as stated N40å¡06'W a distance of 3,461.3' from the SE Cor. of the section doesn't even make it to the actual south line of the NE/4 by about 15'. I guess I'm trying to say there are a few things in the legal you can use, but they all put the easement in a different place. You can start so many feet nw of the se section corner, or you can place it where it crosses the w line of the NE/4, 1887.9' south of the n qtr. cor., but neither allow the distance of 839' to be anywhere close.......or you call the physical centerline of the watermain the center of a 66' easement. Which I would love to do, but that doesn't jive with the newer plat by about 12'.
I would use the actual location as well, given the circumstances. The deed says to use "a" centerline. The last paragraph doesn't tell us what it describes, although one "could" infer it is describing "a" centerline, that doesn't mean it's "the" centerline, and it could be describing one edge or the other. I think there's enough wiggle room in the language to go outside the four corners looking for intent. That would be the construction drawings and exhibit A first and before I would be concerned with the recent plotting. The last paragraph seems to me like one of those "lets put it somewhere in this general vicinity" statements. I don't think it's part of the conveyance language, but merely added verbiage to explain the conveyance which is subservient to the description above (there's a word for these that escapes me at the moment, but plenty of case law that they don't control the descriptions above them).
Duane,
Habendum?
The need for the expressed easement was terminated when the pipeline was built elsewhere, and that together with the long period of non-use might well be taken as evidence of abandonment. And abandonment would terminate the easement. I think Don and Doloris, their heirs and assigns, have a very good case.
If they could find somebody at the UNITED STATES OF AMERICA to make a common sense decision they should be able to record a document that terminates the expressed easement and creates a new expressed easement on the actual pipeline. Good luck with that.
I'm not aware of any applicable OK case law directly applicable, and I have read rather a lot of OK case law. The Oklahoma court generally favors the common sense, laissez-faire, solution in land boundary matters.
Mention is made of an Exhibit A which, if available, may clear up just what exactly is being described. Paden indicated that he was able to plot it to his satisfaction. That's enough for me.
Norman Oklahoma, post: 347261, member: 9981 wrote: The need for the expressed easement was terminated when the pipeline was built elsewhere, and that together with the long period of non-use might well be taken as evidence of abandonment. And abandonment would terminate the easement. I think Don and Doloris, their heirs and assigns, have a very good case.
If they could find somebody at the UNITED STATES OF AMERICA to make a common sense decision they should be able to record a document that terminates the expressed easement and creates a new expressed easement on the actual pipeline. Good luck with that.
I'm not aware of any applicable OK case law directly applicable, and I have read rather a lot of OK case law. The Oklahoma court generally favors the common sense, laissez-faire, solution in land boundary matters.
I have been taught (Donald Wilson & others) that non-use in and of itself does not constitue abandonment...
You've been taught right. I have Oregon case law to that effect. I just know of no Oklahoma cases.
And that is why I also make mention of the termination of the need for the easement, which does tend to extinguish easements (See, for example Merger, Doctrine of ).
We have heard a variety of opinions, logic, law, and speculation on what should control, either the mathematical geometric figure or the pipeline itself, which has apparently been lying peacefully in place for more than 50 years.
LetÛªs look at the language in the written instrument:
ÛÏBeing that tract of land sixty six and no tenths (66.0) feet in width and included between two parallel lines extending to the property lines of the property containing the tract to be acquired and everywhere thirty-three and no tenths (33.0) feet right and thirty-three and no tenths (33.0) feet left and measured at right angles to a centerline, and Û?Û
It has been postulated that the mathematical figure as described by ties from distant corners is the ÛÏintentÛ. Where is bearing and distance ranked in the rules of construction? Yep, pert-nert at the bottom of the list, because usually the best evidence of intent is found on the ground.
While the deeds furnished the means of locating the boundaries, their actual locations was an independent inquiry. Middlebrooks v Sanders, 180 Ala 407, 61 So. 898.
Were monuments set at intersection of the pipeline parcel and the property line of the Hill parcel? Probably not, but who knows. Maybe they are shown on ÛÏExhibit AÛ, or some other document, map, etc. If so, then it may be a whole Û÷nuther ballgame. Right now, letÛªs assume, at this point, that Mr. Cash hasnÛªt found any original monuments, or evidence thereof, so we apparently have to look elsewhere for intend. LetÛªs use this for a guide:
Brashier v Burkett, 350 So. 2d 309 (1977):
ÛÏIt is a fundamental precept of property law that courts should construe instruments so as to give effect to the intent of the parties. Ala.Code, Tit. 47, å¤å¤ 17, 23 (1940); Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951). Yet, any court undertaking the dissection of such an instrument in order to ascertain the intent of the parties is faced with a task which, by its very nature, is plagued with the difficulties and uncertainties that necessarily accompany any probe into mental processes. Fortunately, however, the burden placed on the courts in scrutinizing deeds is facilitated by a body of judicially and legislatively created guidelines for the construction of deeds conveying property.
Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument. Tit. 47, å¤å¤ 17, 23, Code of Alabama 1940; Stratford v. Lattimer, supra; The court should be careful to try to give meaning to every clause and provision of the instrument. Gentle v. Frederick, 234 Ala. 184, 174 So. 606 (1937); Nettles v. Lichtman, 228 Ala. 52, 152 So. 450 (1934).Û
OK, letÛªs go back to the creating instrument: ÛÏand everywhere thirty-three and no tenths (33.0) feet right and thirty-three and no tenths (33.0) feet left and measured at right angles to a centerlineÛ. If the intent was to create a parcel and its boundaries, and then place the pipeline ÛÏsomewhereÛ within the 66 ft. strip, would they have worded this sentence the way they did? I doubt it. Why is ÛÏeverywhereÛ included? It probably is because they realized they probably couldnÛªt build the pipeline perfectly straight. What if they had stated ÛÏand everywhere twenty and no tenths (20.0) feet right and forty six and no tenths (46.0) feet left and measured at right angles to a centerlineÛ? Would anyone argue that the intent wasnÛªt to use the pipeline as a monument?
DD & L, INC. v. BURGESS, 51 Wn. App. 329 (1988), 753 P.2d 561
ÛÏThough the monument referred to in a deed does not actually exist at the time the deed was drafted, but is afterward erected by the parties with the intention that it shall conform to the deed, it will control. 6 G. Thompson, Real Property å¤ 3044 (1962 repl.). See also Makepeace v. Bancroft, 12 Mass. 469 (1815); cf. W. Robillard & L. Bouman, Surveying and Boundaries å¤ 26.11 (5th ed. 1987) (a road as constructed becomes the monument and controls).Û
Back to Brashier v Burkett:
ÛÏSecond, the court should look to the factual situation and the circumstances existing at the time the instrument was created. Nettles v. Lichtman, 228 Ala. 52, 152 So. 450 (1934).
Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument. Slaten v. Loyd, 282 Ala. 485, 213 So.2d 219 (1968).Û
This is where those closest to the situation can be the best resource. Mr. Cash ÛÒ carry on with your investigation.
Norman Oklahoma, post: 347261, member: 9981 wrote: The need for the expressed easement was terminated when the pipeline was built elsewhere, and that together with the long period of non-use might well be taken as evidence of abandonment. And abandonment would terminate the easement. I think Don and Doloris, their heirs and assigns, have a very good case.
If they could find somebody at the UNITED STATES OF AMERICA to make a common sense decision they should be able to record a document that terminates the expressed easement and creates a new expressed easement on the actual pipeline. Good luck with that.
I'm not aware of any applicable OK case law directly applicable, and I have read rather a lot of OK case law. The Oklahoma court generally favors the common sense, laissez-faire, solution in land boundary matters.
There are a few examples I know of in Oklahoma case law where pipelines did not fit the written word of the easement descriptions. Almost exclusively the courts acknowledge the conveyance of the easement to be where the line actually exists. There are cases where the easement is fairly well described, and cases where the description is ambiguous. I tried looking a few up last night, but wasn't able to really find one that was similar to this example.
One I remember was in the Tulsa area and an operator died when he hit a HP gas line that was "out of the easement" by a good amount. I wanted to find that one because in my memory the pipeline company (not the original owner) was first found liable, then it was overturned on appeal. The judge stated in an eloquent way that "safety and common sense" should trump poor descriptions of record that are subject to interpretation. Either through prescriptive means or estoppel the easement existed where the appurtenance was located, not the description. Might try to look that back up when I get some time.
